Delhi High Court

Kushal Kumar vs C.B.I. on 17 February, 2009

Author: G. S. Sistani

           IN THE HIGH COURT OF DELHI AT NEW DELHI
+                          Crl.Rev.P.No.67/2009.
    #      Kushal Kumar                              .... Petitioner.
             Through    :       Mr.R.K. Kapoor with Mr. Mukesh K.
                                Verma, Advocates.

                                 Versus

     Central Bureau of Investigation & Anr. ....    Respondents
            Through     :     Mr.Pankaj Batra, Advocate for
                              respondent No.2/UOI.
                              the State.

                                ORDER

17.02.2009 CORAM:

HON'BLE MR. JUSTICE G.S. SISTANI

1. Whether reporters of local papers may be allowed to see the Judgment ? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the Judgment should be reported in the Digest? Yes

G.S. SISTANI, J. (ORAL):

1. The present petition has been filed under section 397 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as,

"Cr.P.C."), and is directed against the Order on Charge dated

17.01.2009 passed by the learned Special Judge/CBI/PHC/New

Delhi in CC No. 19/08, RC No. AC1/2004/A0003 CBI.

2. The facts of the case as culled out from the petition, are: the

State Bank of India (hereinafter referred to as, "SBI") filed an

original application for the recovery of debts against the borrower

M/S Ajay Metals, Delhi Road, and, a Recovery Certificate was

issued on 04.02.2002 according to which the Bank was entitled to

recover a sum of Rs.72,89,296.76 and the consequential relief of

interest and costs.

3. The Recovery Officer-II, DRT, Chandigarh issued a demand notice

dated 12.07.2002 for payment of the outstanding amount of RS.

72, 89, 296.76, within fifteen (15) days, failing which the

recovery was to be executed under the provisions of the DRT Act,

1993. When payments were not made, SBI, on 25.08.2003 filed a

proposal for sale of the equitably mortgaged property.

Subsequently, a proclamation of sale through an open auction

was issued on 18.12.2003 and it was declared that the auction

would take place on 29.01.2004. The reserved price of the

property was fixed as Rs. 13 lakhs and Recovery Inspector, Sh.

AK Shukla was appointed as the auctioneer. The auction notice

was got published in Dainik Bhaskar on 13.01.2004 and in an

English Daily also.

4. On 29.01.2004, an auction was conducted by the auctioneer Shri

A.K. Shukla at the premises of M/S Ajay Metals and out of the

total no. of nine (9) bidders, Dr.I.S. Yadav being the highest

bidder, was declared successful with his bid of Rs.36 lakhs. It is

stated that Dr. IS Yadav deposited a demand draft of Rs. 10.65

lakhs which was more than 25% of the final bid.

5. However, on 25.02.2004, Sh. Subhash Chand Sharma, who was

the Guarantor as well as the judgment debtor, filed objections to

the auction sale. The petitioner herein (Recovery Officer) directed

for issuance of a notice to the auction purchaser and the matter

was adjourned to 05.03.2004. Learned counsel for the petitioner

submits that the notice was issued in view of the provisions of

Rule 63 of the IInd Schedule to the Income Tax Act, 1961; the

Income Tax (Certificate Proceedings) Rules, 1962; and, also

keeping in mind the principles of natural justice. Thereafter, SBI

filed its reply to the objections and prayed for dismissal of

objections and confirmation of sale and the matter was adjourned

to 16.03.2004. In pursuance of the notice issued to the auction

purchaser (issued for delivery through the channel of SBI), the

auction-purchaser appeared on 10.03.2004, in the open Court

and sought time to file the reply to the objections. The auction-

purchaser filed his reply to the objections on 15.03.2004. As per

the petition, on 15.03.2004, the petitioner was on leave and

because of the fact that the work for which he had taken leave,

could not be completed on 15.03.2004, so he extended his leave

to 16.03.2004. In the absence of the petitioner, the matter was

adjourned to 19.03.2004, as per usual practice, by the lone office

Assistant, Mr. AK Shukla, who also happened to be the auctioneer

in the instant case. Learned counsel for the petitioner submits

that in the meantime, on 17.03.2004 a complaint was lodged by

the auction-purchaser, against Mr. AK Shukla (Recovery

Inspector), which was converted into FIR No. RCAC12004A0003,

dated 17.03.2004, by the CBI. The file of the auction proceedings

were then transferred to Mr. Yogesh Jain, ROI, in the Tribunal, at

the request of the petitioner, in view of registration of FIR against

Mr. AK Shukla (Recovery Inspector).

6. The Central Bureau of Investigation (CBI) sought sanction from

the Central Government for the prosecution of the petitioner,

which was granted under section 19(1)(a) of the Prevention of

Corruption Act, 1988 (hereinafter referred to as, "PC Act").

Allegations were leveled under section 120B, Indian Penal Code,

1860 (hereinafter referred to as, "IPC") read with section 7,

13(2), 13(1)(d) of the PC Act. The said order granting sanction

was passed on 24.06.2005. Thereafter, a charge-sheet was filed

by the Inspector of Police, CBI, ACU-I, New Delhi wherein a prayer

was made for taking cognizance of the offence against Sh. AK

Shukla (Recovery Inspector) and Sh. Kushal Kumar (Recovery

Officer, the petitioner herein) and for summoning them for trial of

the offences punishable under section 120B, IPC read with

sections 7, 13(2), 13(1)(b) of the PC Act.

7. Since the sanction was not sought/granted under section 197 of

Cr.P.C., the petitioner filed a Criminal Writ Petition No. 771/2006,

which was, however, dismissed vide order dated 07.11.2008.

Aggrieved by the judgment of this Court, the petitioner filed a

Special Leave Petition (Crl.) before the Apex Court and which is

pending admission before the Apex Court. In the meantime,

arguments on charge were heard by the Special Judge, Patiala

House Courts and vide order dated 17.01.2009, submissions of

the petitioner against the framing of charge were rejected. Vide

order dated 02.02.2009, charges were framed against the

petitioner. Aggrieved by the said orders, the petitioner has filed

this Criminal Misc. Petition before this Court and prayed for

setting aside of the order dated 17.01.2009 and dated

02.02.2009, passed by the Special Judge, CBI, New Delhi in CC.

No.19/08 (CBI Vs. A.K. Shukla and Kushal Kumar), RC No.

AC1/2004/A0003 CBI, New Delhi.

8. Mr.Kapoor, learned counsel for the petitioner has assailed the

order primarily on three points.

(i) The FIR is against one Mr. A.K. Shukla and that the FIR

does not mention the name of the petitioner. Learned

counsel has drawn the attention of this court to the fact

that the complainant therein (auction purchaser) had not

prayed for any action to be initiated against the petitioner

herein.

(ii) He next contends that in the Order on Charge, the

learned trial court has failed to take into consideration

that once the objections were filed by Sh. Subhash Chand

Sharma (Guarantor), the petitioner was duty bound to

issue notice to the complainant and wait for his reply and

thus there was no impropriety on behalf of the petitioner.

It is the case of the petitioner that he performed the

judicial act within the parameters provided under the

recovery proceedings as in IInd schedule appended to the

Income Tax Act, 1961 and Income Tax (Certificate

Proceedings) Rules, 1962. The perusal of Rules 60 to 63

shows that there is a mandatory requirement of issuance

of notice, especially under the proviso to Rule 63(2). The

relevant rules as relied upon by the petitioner, are

reproduced below:

"60. Application to set aside sale of immovable property on deposit.

(1) Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale, on his depositing.

(a) The amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, with interest thereon at the rate of fifteen per cent per annum, calculated from the date of the proclamation of sale to the date when the deposit is made; and

(b) For payment to the purchaser, as penalty, a sum equal to five per cent of the purchase money, but not less than one rupee.

(2) Where a person makes an application under rule 61 for setting aside the sale of his immovable property, he shall not, unless he withdraws the application, be entitled to make or prosecute an application under this rule.

61. Application to set aside sale of immovable property on ground of non-service of notice or irregularity.

Where immovable property has been sold in execution of a certificate, such Income-tax Officer as may be authorized by the Chief Commissioner or Commissioner in this behalf, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale of the immovable property on the ground that notice was not served on the defaulter to pay the arrears as required by this Schedule or on the ground of a material irregularity in publishing or conducting the sale:

Provided that-

(a) No sale shall be set aside on any such ground unless the Tax Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of the non-service or regularity; and

(b) An application made by the defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate.

62. Setting aside sale where defaulter has no saleable interest.

At any time within thirty days of the sale, the purchaser may apply to the Tax Recovery Officer to set aside the sale on the ground that the defaulter has no saleable interest in the property sold.

63. Confirmation of sale (1) Where no application is made for setting aside the sale under the foregoing rules or where such an application is made and disallowed by the Tax Recovery Officer, the Tax Recovery Officer shall (if the full amount of the purchase money has been paid) make an order confirming the sale, and, thereupon, the sale shall become absolute. (2) Where such application is made and allowed, and where, in the case of an application made to set aside the sale on deposit of the amount and penalty and charges, the deposit is made within thirty days from the date of the sale, the Tax Recovery Officer shall make an order setting aside the sale.

Provided that no order shall be made unless notice of the application has been given to the persons affected thereby."

(iii) It is next contended that the learned Special Judge has

observed in the order dated 17.01.2009 passed by him

that, "objections were entertained from the Objector, who

was a guarantor, though he had not deposited the

mandatory amount......" Counsel for the petitioner

submits that the observations of the learned Special

Judge are misplaced inasmuch as, it was not mandatory

on the part of the petitioner to deposit the amount. And in

fact, the provisions in Rule 63 (supra), warranted that no

order could have been passed unless notice of the

application had been given to the persons affected.

Furthermore, the petitioner acted in accordance with the

requirements of Rule 22 of the DRT Act which provides

that the tribunal „shall be guided by the principles of

natural justice‟

9. Learned counsel for the petitioner further submits that merely

because Sh.A.K. Shukla (auctioneer) demanded the alleged bribe

by abusing the name of the petitioner (Recovery Officer), a

negative inference cannot be drawn against the petitioner. It is

also stated that since the petitioner was acting judicially and the

proceedings before him were judicial proceedings in view of Rule

82 of Schedule II to Income Tax Act, the petitioner was also

entitled to protection under the Judicial Officers Protection Act,

1850.

10. Per Contra, learned counsel for the CBI, Mr. Ashish Kumar

submits that the objections raised by the petitioner herein have

been duly dealt with by the learned Special Judge and thus no

grounds are made out for interference in this revision petition.

Learned counsel for the CBI has drawn the attention of this

Court to the chargesheet wherein specific findings have been

made against the petitioner. The relevant paragraphs read as

under:

"11. Investigation further disclosed that Shri Kushal Kumar and Shri AK Shukla entered into a criminal conspiracy and in furtherance of the said criminal conspiracy, Shri AK Shukla, after the auction proceedings were over on 29.01.2004, demanded bribe of Rs. 35,000/- for himself and for Shri Kushal Kumar from Dr. IS Yadav......."

12. Investigation disclosed that Sh. Kushal Kumar, the Recovery Officer, while acting in conspiracy with Shri AK Shukla, took up the matter on 09.02.2004 and noted in that the report of Shri AK Shukla on the auction be placed on record. He adjourned the matter to 25.02.2004. On 25.02.2004, Shri Subhash Chand Sharma, the Guarantor/one of the judgment debtors filed an objection against the auction/sale of the said property to Dr. IS Yadav. However, Shri Subhash Chand Sharma did not deposit the mandatory amount with this objection and thus did not fulfill the requisite condition and therefore, his objection was liable to be rejected, outright. Instead, Sh. Kushal Kumar entertained the matter. ............ Sh. Kushal Kumar summoned Dr. IS Yadav on 10.03.2004, instead of 05.03.2004, when the matter was fixed for further proceedings. Further on the next date, i.e. on 05.03.2004, Sh. Kushal Kumar adjouned the matter to 16.03.2004. On 05.03.2004, the State Bank of India, Rewari also filed its reply to the objection of Shri Subhash Chand Sharma. ........

13. Thus, Sh. Kushal Kumar on 27.02.2004, instead of summoning the auction purchaser, Dr. I.S. Yadav, for his appearance

on the next date of hearing i.e 05.03.04, summoned him for 10.03.2004, when no other party was summoned. Further, on 05.03.04, Sh. Kushal Kumar, instead of adjourning the matter to 10.03.2004, when Dr. I.S. Yadav had been summoned, adjourned it for 16.03.04.

14. Investigation further disclosed that on 10.03.2004, when Dr. I.S. Yadav, the auction purchaser, along with his Accountant Shri Gopal Sharma, appeared before Sh. Kushal Kumar, the latter in presence of Shri Gopal Sharma, behaved with Dr. I.S. Yadav in an unbecoming manner. When Dr. I.S. Yadav presented the notice dated 27.02.2004 issued by Sh. Kushal Kumar for appearance of Dr. I.S. Yadav on 10.03.2004, before Sh. Kushal Kumar, he threw it away and asked Dr. I.S. Yadav to come with some lawyer. Sh. Kushal Kumar also asked Dr. I.S. Yadav as to whether Sh. A.K. Shukla had told him something and, if not, he should talk to Sh. A.K. Shukla, the Recovery Inspector".

11. Learned counsel for CBI also relies upon the Order on Charge

dated 17.01.2009, to canvas his arguments that the learned

Special Judge has followed the dictum of the Apex Court in the

case of Union of India Vs. Prafulla Kumar and Another

reported at AIR 1979 SC 366. Learned counsel submits that the

Special Judge, CBI had taken into account all the objections

raised by Sh. Kushal Kumar (petitioner herein) and on the basis of

settled position of law with respect to the „framing of charge‟,

rejected the contentions of the petitioner. Thus there is no

infirmity in the order passed by the learned Special Judge.

12. I have heard learned counsel for the parties, taken into account

the rival contentions and minutely analysed the material on

record. Section 397 read with section 401 of Cr.P.C. vest

revisionary jurisdiction in the High Court. In the case of

Jagannath Choudhary v. Ramayan Singh reported at (2002)

5 SCC 659 the Apex Court while reiterating the established

principles with regard to the exercise of revisionary jurisdiction,

by this Court, held:

"9. Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of (sic or) apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. (See in this context the decision of this Court in Janata Dal v. H.S. Chowdhary1.) The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the Court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction

(emphasis supplied)

10. While it is true and now well settled in a long catena of cases that exercise of power under Section 401 cannot

(1992) 4 SCC 305 : 1993 SCC (Cri) 36.

but be ascribed to be discretionary -- this discretion, however, as is popularly informed has to be a judicious exercise of discretion and not an arbitrary one. Judicial discretion cannot but be a discretion which stands "informed by tradition, methodised by analogy and disciplined by system" -- resultantly only in the event of a glaring defect in the procedural aspect or there being a manifest error on a point of law and thus a flagrant miscarriage of justice, exercise of revisional jurisdiction under this statute ought not to be called for. It is not to be lightly exercised but only in exceptional situations where the justice delivery system requires interference for correction of a manifest illegality or prevention of a gross miscarriage of justice. In Nosibolla2, Logendranath Jha3 and Chinnaswamy Reddy1 as also in Thakur Das v. State of M.P.2 this Court with utmost clarity and in no uncertain terms recorded the same. It is not an appellate forum wherein scrutiny of evidence is possible; neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible. It is restrictive in its application though in the event of there being a failure of justice there can be said to be no limitation as regards the applicability of the revisional power.

11. The High Court possesses a general power of superintendence over the actions of courts subordinate to it. On its administrative side, the power is known as the power of superintendence. On the judicial side, it is known as the duty of revision. The High Court can at any stage even on its own motion, if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for the records and examine them. This right of the High Court is as much a part of the administration of justice as its duty to hear appeals and revisions and interlocutory applications -- so also its right to exercise its powers of administrative superintendence. Though however, the jurisdictional sweep of the process of the High Court, however, under the provisions of Section 401 is very much circumscribed, as noticed hereinbefore."

13. Furthermore, while dealing with a matter wherein charges

framed against the accused by the Trial Court but quashed by

(1978) 1 SCC 27 : 1978 SCC (Cri) 21.

the High Court in a revision petition before it, the Apex Court

observed :

"3. ......... The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. This Court in Kanti Bhadra Shah v. State of W.B3.has held that there is no legal requirement for the trial court to write a reasoned or lengthy order for framing the charges.

4. In the instant case the learned Judge ignored the basic principles which conferred the jurisdiction upon the High Court for exercise of revisional powers. It was premature for the High Court to say that the material placed before the trial court was insufficient for framing the charge or that the statement of the prosecutrix herself was not sufficient to proceed further against the accused- respondent.

(emphasis supplied)

5. As the impugned order has been passed against the settled position of law, it is unsustainable and is accordingly set aside. The order of framing the charge passed by the trial court against the accused is upheld with directions to it to proceed with the trial of the case and dispose of the same on merits in accordance with law."

14. In light of the aforestated principles laid down by the Apex Court

with regard to exercise of revisionary jurisdiction by the High

(2000) 1 SCC 722 : 2000 SCC (Cri) 303.

Court, and applying them to the facts of this case, it would be

relevant at this stage to note the First Information Report (FIR)

which was lodged against Sh. AK Shukla, Recovery Inspector. In

the FIR, it has been mentioned that Sh. AK Shukla (Recovery

Inspector) had mentioned the name of Sh. Kushal Kumar

(petitioner herein), as the person who was an associate of Sh. AK

Shukla in demanding bribe. In fact, in the FIR, the complainant

(auction purchaser) goes on to state that on 10.03.2004, he had

met the petitioner in his office and showed him the notice of

appearance. At this, the petitioner threw his notice of appearance

and asked him to appear through a counsel. Then the petitioner

asked him (auction purchaser), whether the latter had met Mr.

Shukla (Recovery Inspector) and if Mr. Shukla had told him

"something" and if not, then he should contact Mr. Shukla.

Learned Special Judge has rightly taken this fact into

consideration that the petitioner had asked the complainant

(auction purchaser) whether Mr. Shukla (Recovery Inspector) had

told him "something" and if not then he should go and contact

him. The learned Special Judge while passing his order, had

based his decision upon para 10 of Union of India Vs. Prafulla

Kumar Samal and Another reported at AIR 1979 SC 366. It

would be useful to reproduce the said relied portion of the

judgment:

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the judge while considering the question of framing the charges u/s 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

15. As per the law laid down by the Apex Court in the case of

Prafulla Kumar (supra), a Court framing charges has to

consider whether the material placed on record before it,

discloses a grave suspicion against the accused, and whether the

same has been properly explained to the court or not.

16. In my considered opinion, Sh. Kushal Kumar (petitioner) being a

Recovery Officer, there was no reason for the petitioner to have

asked the complainant to go and speak to Shri AK Shukla,

Recovery Inspector, who had in fact no role to play, once, the

matter was placed before the Recovery Officer and objections

had been filed. Another factor which led to grave suspicion in the

mind of the learned Special Judge is the fact that although the

matter had been adjourned to 16.03.2004, the complainant

(auction-purchaser) was asked to appear before the Recovery

Officer (petitioner herein) on 10.03.2004. The explanation which

has been given in the court is that since 31st March was fast

approaching (the closing date of the year), therefore the

Recovery Officer was inclined to wind up the matter

expeditiously, and see that the money is credited to the account.

I do not find sufficient force in this submission of learned counsel

for the petitioner on account of the fact that it was Sh. Subhash

Chand Sharma, Guarantor who had filed objections, and no

purpose would have been served by calling the auction-

purchaser on a date, when the matter was neither listed nor the

objector (Sh. Subhash Chand Sharma) had been called. The

money would only have been paid by the complainant if the

objections had been dismissed. Furthermore, the malafide of the

Recovery Officer is also shown by the fact that he entertained the

objections from Sh. Subhash Chand Sharma without him having

deposited the mandatory amount. Rule 60 of Income Tax

(Certificate Proceedings) Rules, 1962 explicitly lays that the

deposition of the amount is a condition precedent for

entertaining the objections. Rule 60 reads as under:

"60. Application to set aside sale of immovable property on deposit.

(1) Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale, on his depositing.

(a) The amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, with interest thereon at the rate of fifteen per cent per annum, calculated from the date of the proclamation of sale to the date when the deposit is made; and